Bonus episode: The Judgment

Just a warning, this episode contains some distressing content. When we started making the diagnosing murder podcast, it was really hard to get people who'd been accused of shaking their babies to talk to us. We knew they were out there, but people who were still under suspicion and whose children had been taken away just didn't want to risk angering the authorities. Understandably, their first priority was to get their children back. The fact that Kabir and Deepika, David and Jesse Harvey were prepared to tell us their stories was frankly pretty amazing, but others just wanted to get on with their lives. So what I didn't expect was that our podcast would prompt so many other people to email me and tell me their stories. Even from all over the country, and they were grateful that finally someone was talking about this. Still most of them don't want to speak publicly for the same reasons, but one of them, one of them, she agreed in an instant. So my name's Kelly Lee Bilowell? So I asked her to come into the studio, and she brought someone else with her, a lawyer called Bernard Collieri. It's a highly complex situation and alleged baby shake where the evidence hangs in the balance. Their story started more than 25 years ago. I am the mother of a child that was involved in a shaken baby case, and I was 23 at the time when all of this occurred. It's one of Australia's early cases, and out of the chaos it's owed in her family's life, Kelly tried her hardest to make something good, and fair to say that it's kind of changed the way you've lived your life. Oh, absolutely. She became a lawyer, and then she joined the police force to try to bring about some change, and it turns out that Kelly's extraordinary case, and what the legal system did with it, is as relevant today as it was when it started in 1999. I'm Michael Bachelard, and this is The Judgment, a bonus episode of Diagnosing Murder. Kelly Lee Bilowell has always marched to her own tune. At the start of year 11, she found out she was pregnant, but she wasn't going to let that stop her getting the education she needed. The thought process when I came and told the school that I was pregnant was that you were to leave, and I said absolutely not. Kelly had her baby in the school holidays, and then went back to year 12. She helped convince the school to open up a mother's room, and then she went and gave speeches to the ACT government and other schools about the importance of young mothers being able to complete their education. She left a lasting legacy. I am made sure that when I left it continued, and I believe that it's still a mother's room out, hawker college. At 18, she had a second baby, and then about five years later, when she was 23, her third child Charlie came along. Charlie came out in what Kelly describes as a big rush, and it left its damage on the newborn girl. She was born with bloodshot eyes, and. There was a huge amount of bruising around the nose and cheek area, so they wester away, and she was putting her, I think, a hemidic rib for like 24 hours. So, yeah, but it was. Presupport as birth. It was. It was really quick. A Kelly side throughout was her new partner, a young carpenter's apprentice called Stuart. He couldn't get in touch with him, so we haven't used his last name. He was a big man, and Charlie wasn't his child, but on the day she was born, he cried with joy. Kelly says he was a lovely, loving stepfather to her three children. He was great. He was so nurturing and funny with the kids. He'd run around with the kids. He would hide lollies in his coat pocket and in the car, and all those sort of things that dads do that mums are aware about that they never say. One day, though, things went horribly wrong. About three weeks after Charlie was born, Kelly headed off to the accountant to get her tax done. Stuart was at home looking after baby Charlie. It was late July, it was quite cold, and I came home to my auntie, who was a midwife of 30 years. Her car was in the driveway, which I thought was quite strange. Walked in, and they were both talking that Charlie had gone limp in the shower, and they were taking it at a hospital. Stuart told Kelly that Charlie had been upset and unsettled after her feed. To calm her down, he'd taken her into the shower. She really liked the showers, and I think too because it was cold, and the showers were really quite warm and things like that. She would always calm down. Then, according to Stuart, Charlie had just gone limp and stopped breathing. It came out of nowhere. Stuart called Kelly's aunt, Julie, the midwife, in a panic. She lived just nearby. Julie suggested over the phone that Charlie might have inhaled some water. She told Stuart to hold the baby over his knee with her head angled down and tap her on the bottom. Maybe that would clear any blockage and start her breathing again. Then Julie came straight over, then Kelly arrived home. Charlie was still looking odd and breathing shallowly, so they rushed her to the Canberra hospital. At first, the doctors thought the baby had hypothermia. They kept her in overnight and said they'd release her in the morning after a couple of tests. As they were about to discharge Charlie the next day, though, it was Kelly who noticed something wrong. I recall her foot, one of her toes was tapping or ticking, it would be probably the word. And I alerted the doctor to that, and that's when the floodgates opened. The ticking turned out to be a seizure, and any thought of sending Charlie home was abandoned. A couple of days later, as they watched over Charlie in the hospital, Kelly was asked to go alone with one of the doctors. Stuart was asked the same thing. So we got taken into separately, into a room, and one of the doctors said to me, "Can you recall what happened to Charlie?" In reporting diagnosing murder, we've heard similar stories from many other parents. First the doctors, then the police, asked them to explain the child's clinical signs. It seems like they're looking for a particular answer that either they or their partner should admit to abusing the child. Any other answer, it seemed, just doesn't cut it. But Kelly, like others we've spoken to, couldn't give them what they wanted. And I said, "I don't know what you're referring to." And he said, "Did something happen to Charlie? Did she fall?" And I said, "No." And he said, "Did someone shake her?" And that was the first mention of this and I said, "I'm not quite sure what you're talking about." And that was when I knew that there was something else that was happening. Charlie had been diagnosed with retinal hemorrhages, subdual hemorrhages, and brain swelling. Remember, these are the three classic signs of the triad, which is sometimes known as a constellation of injuries. And forensic doctors have believed since the 1970s, these injuries signal that a baby has been shaken. There were also bruises on Charlie's bottom. Kelly says they would have happened when Stuart was trying to revive her. Some of the doctors, though, suggested this was more evidence of abuse. In the hospital, Kelly was told Charlie was likely to be blind. And the damage to her brain will most likely she will not walk. And did I have anything to say to that? How would you describe how they told it to you? Well, it was very direct and there was no empathy. There was no support and there was no concern for my mental health. All the questions that I was asking, like, why is this happening? They couldn't explain to me why these things had happened. And they turned that on me for me to explain them. I recall Michael getting up at that point and running out of the room because I felt overwhelmed and I felt just my whole world had exploded. During this series, we spelled out the huge global controversy that surrounds this diagnosis. How the scientific evidence for it convinces some doctors and lawyers, but leaves others skeptical. Some countries just won't prosecute these cases anymore. In New Jersey, for example, the State Supreme Court recently ruled that there was no scientific basis for shaken baby theory. They called it conjecture. But in the ACT in 1999, few of these doubts had been raised. The diagnosis of shaken baby syndrome and prosecutions based on it were in their early uncontroversial days. So, in Kelly's case, the police were involved within days. She was taken to an interview room at the local police station and grilled for several hours, and so was Stuart. While they were there, police installed listening devices in their house. Once Kelly was able to prove that she'd been at the accountant, suspicion turned squarely on her partner. Even so, she says, for 18 months, the police were still following her. I approached one of the detectives and said, "Can you just let this alone?" We're at the Belk on the Mall on a Friday evening, just wanting to have a shopping expedition with the kids. There's nothing to see. And how did he respond to that? I think he was quite surprised, absolutely. Kelly was able to keep her children, but Stuart was arrested and charged with child abuse. He was led out on bail, but only on condition that he was never alone with Charlie. Over the next two and a half years, Stuart lived away from Kelly, back with his father. But despite their separation, his relationship with Kelly stayed strong. And over that time, the couple had two children of their own. Kelly was allowed to keep them, but only if Stuart wasn't living in the family home. Kelly still remembers how stressful that was. She says the media coverage was intense, and sometimes felt threatening. They reported on the purchase of a new house, and then we had the daily telegraph with the big home for Christmas. I think it was on the front page. I had a huge effect. You stopped going to barbecues and get together and things like that, because you would be asked about what's happening. And there was numerous times that I was in a lift, and somebody had discussed our case, not knowing that that was me in the back. To Kelly, it felt like nothing they could say would override the medical evidence, which was based on the shaken baby theory. And so did you feel, Kelly, that the presumption of guilt was being made against you and Stuart? Absolutely it was. Absolutely. There was no two ways of this investigation. It was targeted, because they hear the words of constellation of injuries, and that's all they need. In the absence of any contrary theory, Stuart was charged with recklessly inflicting grievous bodily harm on Charlie. As sure it was, I think, then a apprentice carpenter? In their corner was Bernard Calieri, and he has his own extraordinary story. Not only is Bernard one of Canberra's most prominent lawyers, for a couple of years he served as the attorney general of the ACT. In later years, Bernard became famous when he defended a man known as witness Kay. He was the whistleblower who revealed that Australia had spied on the East Timurese government during oil negotiations. In this instance, we shook the hands of the Timurese, and we said that we would negotiate a sea boundary in good faith, and then we spied on their negotiating team. On that case, Bernard himself faced national security charges. Today, I have discontinued the prosecution of Mr. Bernard Calieri under Section 71 of the Judiciary Act 1903. Well before all that happened, back in 2000, Bernard agreed to defend the young carpenter, Stuart. He had big hands. He was a nice young boy, a young, unsfisticated, in the ways of police investigations, and dumbfounded by finding himself a front-page monster. This was Bernard's first shaken baby case, but in another part of his legal practice, he was quite familiar with cases of hypoxic babies. These are babies who are injured because they miss out on oxygen as they're being born. That can cause brain swelling and permanent damage, a bit like some of the triad symptoms. Sometimes hypoxia happens for natural reasons, but it can also be caused by medical negligence, like the wrongful use of forceps or prolonged deliveries, so sometimes Bernard would sue doctors for negligence. When Bernard came across Cali's case, some of Charlie's injuries looked remarkably familiar, one in particular stood out. Charlie had been born with bloodshot eyes, and her midwife, relative, spotted it first off. We're talking about it was three weeks, Kelly, three-week-old baby. Correct. She still had blood shot eyes from birth, not noted properly in the literature that we eventually obtained from hospital notes. We heard during diagnosing murder how a traumatic birth could cause the signs of the triad, and so-called genetic factors, but Bernard was struck by how uninterested the hospital seemed to be in looking for a natural cause for Charlie's injuries. That all has to be tested through the genetic line and wasn't in Charlie's case. No biological history was sought or taken before Stuart was prosecuted. Bernard found this just extraordinary. They know how to do it when we sue them for a mismanaged labour, where they try to fix it on genes and not on mismanaged forceps into a delivery. So what was the difference in this case? Why didn't they look for a medical explanation then? Do you think? They raced to blame. It was a raced blame. They had confused young parents, grieving young parents, and they're out bugging their house. In 2001, Charlie was a toddler when finally Stuart's case made it to a trial in the ACT Supreme Court. Bernard asked for a judge alone to try their case. With a tabloid coverage, Kelly and Stuart had suffered. They didn't want a jury anywhere near it. And what one of the prosecution witnesses did in that courtroom in Canberra's legal district vindicated Bernard's decision. That he smashed the skull to pieces on the witness box ledge. And there was a silence, like a shocked silence in the court. More of that later. But having a judge alone trial also has another consequence. In normal trials, we never know the reason why the jury found one way or the other. In this case, we do. Because we have the judge's full written findings. And 25 years later, those findings still make for compelling reading. And they're still cited in the global argument over shaken baby syndrome. The judge was Justice Ken Crispin. You'll hear from him after the break. I'll just get the recording going. I think that's going. When Kelly and Stuart went to court, the man on the bench in front of them had an interesting story of his own. So Ken, I might just get you to start by introducing yourself. I'm Ken Crispin. I'm now retired. I was a barrister for many years. I was a spring court judge and later prison of a court of appeal in the ACT. In other words, Ken was the top dog among Canberra's judges. But more than that, one of Ken's most formative experiences as a lawyer was in one of Australia's most infamous cases, the case of Lindy Chamberlain. I spent almost a year of my life in the Royal Commission and with a trained blunt case. He even wrote a book about it. He called it the legal saga that transfixed the nation. Lindy Chamberlain was wrongfully convicted in 1982 of murdering her baby daughter Azaria. Well, let me ask you face to face whatever Australian would ask you. Did you kill Azaria? No way. I love that little girl. She said a dingo took her baby. There wasn't time to go and tell people I just yelled out as anyone got a torch. Dingo's got my baby. And witnesses at the campsite at Uluru confirmed that. But police and prosecutors were able to override that evidence with two things. The first was the apparently odd behaviour of the Chamberlains after their baby disappeared. I talked about that in my podcast "Trial By Water". The second apparently damning threat of the evidence in her case came from experts. This evidence seemed to be based on forensic science. But after Lindy Chamberlain was imprisoned, it turned out it was just completely wrong. Ken says one of the worst examples was a spray of what experts testified was fetal blood in the Chamberlain's car. Police said that proved the car was the murder scene. It turned out that the supposed fetal blood was actually a mixture of paint and bitumen, part of the process of manufacturing the car. Ken says this wasn't the only problem with science and the law that the Chamberlain case exposed. At that time, baristas very frequently tended to let the opinions and expert with Muslims go through to the Keeper unless they had some reason to sit down at. But in the Chamberlain case, major errors were admitted in six hours set on scientific disciplines, and some of them were really quite stark. Junk science isn't just a problem in Australia. In America in recent years, all sorts of supposedly scientific evidence has been debunked. Bite mark evidence, blood spray patterns, hair microscopy, voice spectrometry, and among the hundreds of exonerations that DNA evidence has brought about in that country, almost half involved the misuse of forensic sciences. At least one American state won't even hear shaken baby cases anymore. But still in Australia, judges don't really have a way of testing if scientific evidence is reliable. Instead, they rely on lawyers cross-examining the expert witnesses to test forensic evidence, just to tease out the truth. Ken used to be at the very top of the legal system, and even he says that's not a particularly good way of doing it. Judges usually know very little about the case at all until it starts. They traditionally they derive all of their evidence from the witnesses in the case. It's up to the baristas for the competing parties to decide which witnesses to call, and how but they should be questioned. It's sometimes said by lawyers that cross-examination of a witness is, quote, "the greatest legal engine ever invented for the discovery of the truth." But it relies heavily on lawyers being right on top of the scientific details. And in your experience, opposing baristas always top-notch? I know we're of any profession on the face of the planet in which everybody's top-notch. Baristas vary from a pretty hope was to absolutely brilliant, with most of them more or less in the middle. And so we're relying on a layperson to cross-examined a scientist who's potentially paid or at least been brought on by the other side to kind of peep them honest. Is that a good system? It's a bit like democracy, it's the least worth system. It has its real limitations, but it's hard to know what's better. In the case against Stuart, the prosecution called four experts. All of them said that the injuries to baby Charlie were caused by abuse. One of these witnesses was a Sydney pediatrician called Dr. Michael Ryan. Now, Michael was one of the earliest doctors in Australia to really back prosecutions for the shaken baby diagnosis. In 2001, he helped organise a conference in Sydney held by the American Advocacy Body, the National Centre on Shaken Baby Syndrome. In his speech, Michael described child abuse medicine as quote, "the dark side of the force of pediatrics." In the case against Stuart, Michael was the star-turn. He told the court that the type of force exerted on Charlie was similar to that generated in a high speed car crash. And then he did something extraordinary. Bernard Calieri, the lawyer for the defendant, Stuart remembers it vividly. We didn't have enough money to match all their experts, so it was about four to one. And there was the most appalling incident during the trial. The only way to describe it was there was a medical specialist, Crusader, Michael Ryan, being evidence who, after he entered the witness box, bent down to his bag and pulled out a doll with a plastic skull. He started shaking the baby with both hands on the baby in front of him, violently. He just got so excited that he smashed the skull to pieces on the witness box ledge. Bernard says he was grateful that Ken was the person judging this trial. He thinks a jury might have been unfairly swayed by the doll smashing. This trial was infected with emotive demonstrations throughout. So how did all that affect the judge? Well, Ken doesn't want to talk specifically about Stuart's case. There's an old convention that judges let their findings do the talking. But he is prepared to speak generally about shaken baby syndrome and its proponents. And he says from what he heard in the courtroom and what he's read, that. There seemed to be a number of logical flaws. I can't remember when I asked, is there any evidence that they can't be caused any other way. The answer was there cause this way, said yes, I understand that. But the fact that you can cause a combination of injuries one way doesn't it say a fact, though, proves they can't be caused in some other manner, doesn't? No, no, there caused this way. I can't help noticing that when Ken's quoting witnesses of this kind, he adopts this tone of just unquestioning certainty. So I ask him, what do you think the sort of core issue is there? There's a phenomenon that in other contexts would be called excessive product enthusiasm. The first obvious thing is that pediatricians deal with severely injured children. And when you're dealing with severe injuries, there is always a feeling that this is terrible, this shouldn't have been allowed to happen. And that is not too far away from somebody must be at fault about this. And then in relation to shaken baby syndrome, you tend to have people who are associated with the same group of experts, giving the evidence, and you get a measure of groups think about it. Ken finished hearing Stuart's case on December the 12th, 2001. Nine days later, he delivered his judgement, not guilty. He tells me he rushed it out so Stuart could spend Christmas with his family. Ken wrote that the opinions of the expert doctors for the prosecution, including Michael Ryan, were largely based on either circular reasoning or confession studies. In the judgement, he described these as quote, "the anecdotes of an unknown group of people who admittedly injured young children by shaking them." He also wrote, "There was no reason to disbelieve Stuart's story that Charlie became limp in the shower. There were a number of conditions that might have caused this heat rot, and then he named them. One of them was birth trauma." Of the four prosecution doctors, Ken wrote quote, "the mere fact that a number of people, even a number of experts believe something, does not warrant the conclusion that it must be true." Well you say in your judgement actually that expert witnesses are not immune from the temptation to leap to unwarranted conclusions, engage in unsubstantiated speculation or act upon hearsay or rumour. Is that true? Well, yes it is for some extent because experts are as human as the rest of us. Another part of Ken's judgement also struck me. It seems obvious and so crucial. He wrote that medical experts shouldn't be expressing an opinion that injuries must have been inflicted deliberately. That amounted to them speculating on someone's state of mind, and these doctors at least just didn't have the expertise. But in shaken baby syndrome, that assumption is baked in from the start. It's right there in the name. Shaken baby syndrome says this baby's been shaken. Its other more modern titles are equally bad, abusive head trauma, inflicted head trauma, unaccidental injury. Well they all carry the same assumption. As a result, by the time the doctors call the police in these cases, that assumption's well and truly been made, and they're already fired up to save this child from future harm. Burn it says that when cases like this arrive in court, there is. Some resumption of culpability because we all look after our children, why is that child got bloodshot eyes and having fits? But that's the opposite of the presumption the law demands. Exactly, precisely. And so did you feel Kelly that the presumption of guilt was being made against you and steward? Absolutely it was. And the rest it seems follows from there. Yeah, I think the problem is that people tend to see themselves as on a crusade to save children, which is entirely understandable and in many respects entirely in lawtory. But you just have to be so careful that you don't wind up causing injustice. It turns out that Charlie did not go blind and she's entirely able to walk. Charlie is vivacious and she's independent and she's a girly girl. She's a girly girl. She likes the makeup and the hair and the outfits and she loves to sing in the car and have chats about her cups of tea. So yeah, we have a great relationship and I'm proud of who she has become. Yeah, she's going great. She passed all her developmental milestones as a child. She graduated year 12 and now she's 26 and earning a living. I asked Kelly if I could speak to Charlie for this episode, but she said no. Charlie just wants to get on with her life. Stuart though, he didn't do so well. We couldn't get in touch with him, but Kelly says that in the three years he was facing these accusations, he really went into his shell. He'd worked long hours, then just go home to his dads. Even after the case ended and he was acquitted, Kelly says it never really left him. Oh, the long-term impact on Stuart has been phenomenal. Stuart became very scared to be out in the public. He would hide away because of what he'd been accused of. He felt demonised and as a young man, it crucified him, his intelligence, his personality and who he was. He wasn't that positive and outgoing person that he used to be and fun to be with. Would you say it ended your relationship? Absolutely. For Kelly though, the case had the opposite effect. She fired up. She moved to Queensland and then inspired by Bernard's work, she did a law degree. Later, she decided to become a police officer herself. Why? Because I wanted to train police in how to deal with these sort of cases. What did you want to train them in? To any new detectives or older detectives or experienced people in the event of a shaken baby, this is what you need to look at. And I did that. She says in one case, she convinced the detective to take a closer look at the evidence, to look at the child's genetic history. He did and then he dropped the prosecution. That was one success, but Kelly wanted more. So for 13 years, she battled away in the Queensland police. Then, in the same week, we released the final episode of the podcast series, Kelly called to tell me this story. And then she quit. Did you achieve what you wanted to achieve? Absolutely not. Why? Police, and I can say this hand on heart after being a police officer for so long, have one way of doing things, and I don't think that they like the interruption to that flow. I think that's one of the issues that we've got with both police and medical. They don't want to look outside that one square. I'm not sure what she means by the flow in the square, so I ask her. In her answer, she goes back to her own case. I think that the hospital rang police. They said we have a baby here that has been hurt by the parents, and that was it. That was enough. That was enough. There was nothing outside that. There was no investigation on what I was like as a mother. Had any of my other children ever been hurt, the biological things, none of that was conducted, which is fundamental to any case. How was the birth? What happened in the birth? Is there any photos of this child with bloodshot eyes soon after, which lasted for weeks? None of that was taken. We asked Queensland Police about Kelly's comments. Their spokesperson said they were committed to evidence-based policing, and they were the only Australian state with a specialist child trauma unit. They also said they participated in research to make sure investigations kept up with best practice. It's not how Kelly saw it. I was trying to educate them with the knowledge that I'd had in relation to that, and they were not listening to me at all. There was walls up in, this is how we do it, and it's not going to change. Change is what Kelly fought for, and she couldn't do it by herself. In reading Ken's judgement, I'm kind of shocked at how many opportunities we've missed. Ken was a skeptic of so-called forensic experts in courts, and that meant he nailed the problems with the signs of shaken babies syndrome 25 years ago. Globally, things are starting to come around to his point of view. In Australia, not much has changed. Because specialist doctors are still pointing the finger, sometimes within hours of a sick baby arriving in hospital, and that presumption of guilt then flows through to the police, the social workers, and ultimately to the courts. Like me, Kelly's lawyer Bernard Calieri is still shocked by this. He wants change, and as a former attorney general, he naturally thinks big. It's such a profound issue. We have specialist police for sexual assault. We need specialist police for these types of alleged crimes, and as soon as the better, there'll be fewer outrageous miscarriages of justice, Smuggle. Would you back an inquiry into this? Yes, it's long overdue. It's awful. I go overseas, and I see this happening in other jurisdictions. We need to be attentive to justice in this area. Now, not later, now. Diagnosing murder is a production of the age and Sydney Morning Herald. It's hosted and reported by me, Michael Bachelard. Ruby Schwartz executive produced the series. She's also the head of investigative podcasts. Julia Carr-Katzel was a producer on this series, mixing on this episode by Kyle Hopkins and Martin Peralta mixed the series. Editing from Patrick Elligot, the age's editor, and Matthew Dunkley, the deputy and investigations editor. Special thanks to Lisa Mucksworthy and Luke McAlvin. Subscribe to Diagnosing Murder to make sure you don't miss an episode. Subscribe to the age and Herald to read articles about this issue. Thanks for listening. [MUSIC]